In examining the situation in Afghanistan under the Taliban government, it
becomes evident that the conventional perspective on the organic growth of law,
as described by Savigny, faces significant challenges in this context. Savigny's
theory posits that law is an unconscious and organic development, found rather
than made, and that it should conform to the popular consciousness.
However, the current circumstances in Afghanistan raise critical questions about
the applicability of this theory. The Taliban government's imposition of
restrictions on girls' education, women's empowerment, and the dismantling of
key institutions such as the human rights commission and women's ministry
reflects a divergence from the principles of universal law. In this case, it
seems that the law being implemented is not a product of the general
consciousness of the Afghan people but rather a conscious decision by the
Taliban leadership to curtail certain freedoms and rights.
The prevailing legal landscape in Afghanistan, under the influence of the
Taliban, challenges the notion that law naturally evolves in harmony with the
collective consciousness of the people. Instead, it appears that the legal
framework is being shaped by the specific ideologies and policies of the ruling
authority. In such a scenario, the traditional role of lawyers and jurists as
representatives of the popular consciousness and shapers of the law comes into
The suppression of dissent and the imposition of restrictions by the Taliban may
limit the effectiveness of legal professionals in reflecting the true sentiments
of the Afghan people. The theory that law grows organically and is shaped by
the common consciousness is perhaps outdated in the face of authoritarian
regimes or situations where legal developments are driven by ideologies that do
not align with the broader population.
In the context of Afghanistan, it raises concerns about the legitimacy and true
representativeness of the legal system under the Taliban rule. Indeed, Savigny's
theory emphasized that law is deeply rooted in the general consciousness of the
people, representing their spirit and evolving from historical culture and
Volkgeist, or the general consciousness, was considered by Savigny as a crucial
element in the creation and development of law. According to him, any law
formulated without due consideration for the historical background and
traditions of a community is likely to result in confusion rather than solving
problems. For Savigny, law was not a lifeless, artificial, or mechanical
construct, but rather an organic product arising from the collective spirit of
However, when examining the current legal landscape in Afghanistan under the
Taliban government, it becomes apparent that the legal measures imposed, such as
restrictions on education and human rights, do not align with the general
consciousness of the Afghan people. Instead, these decisions seem to be
deliberate choices made by the ruling authority, challenging the core principles
of Savigny's theory.
In the face of such divergence between legal developments and the general
consciousness of the people, questions arise about the applicability of
Savigny's theory in contemporary circumstances. The theory's emphasis on the
organic growth of law from the spirit of the people appears to face challenges
when confronted with authoritarian regimes that impose laws contrary to the will
of the broader population.
The situation in Afghanistan underscores the complexity of legal development in
contexts where ruling authorities may prioritize their own ideologies over the
collective consciousness of the people. This raises important considerations
about the role of law, legal professionals, and the adaptability of legal
theories in addressing the dynamics of governance and societal values in the
Law Develops Like Language
Savigny's theory emphasizes the national character of law and its development in
conjunction with the growth and identity of a society. According to Savigny, law
is intricately tied to language, customs, and government, forming a cohesive
whole based on common faiths, beliefs, and convictions. The strength of the
law, in this view, derives from the society itself, and as the nation loses its
nationality, the law diminishes.
In essence, law, language, customs, and government are inseparable from the
people who follow them. However, when examining the present situation in
Afghanistan, it appears that the development of law is not in accordance with
the conscious will of the general public, as Savigny's theory suggests. Instead,
it seems to be growing under the command of a sovereign authority, the Taliban,
supported by sanctions in the form of punishments and even violence.
The legitimacy of the sovereign, in this case, the Taliban leadership, becomes a
crucial point of consideration. Savigny's theory presupposes that law is an
expression of the common faiths and beliefs of the people, indicating a sense of
collective legitimacy. In the context of Afghanistan, the legitimacy of the
Taliban as a sovereign authority might be a matter of contention.
Legitimacy can be evaluated based on factors such as popular support, adherence
to constitutional norms, and international recognition. If the Taliban's
authority is established through force rather than the genuine consent of the
governed, questions may arise regarding the legitimacy of their rule. The
imposition of laws through coercion and sanctions, as opposed to reflecting the
collective will of the people, challenges the alignment of the legal system with
Early Development of Law is Spontaneous;
Indeed, Savigny's theory provides a framework for understanding the natural
progression of law in a society. According to Savigny, in the early stages of
societal development, law evolves spontaneously based on the principle of
internal necessity. As a society advances, different aspects of national
activities, initially developing cohesively, start to diverge into specialized
branches. These branches are then taken up by specialists, such as jurists,
linguists, and scientists, who contribute to the richness, completeness, and
technicality of these subjects.
Law, in Savigny's view, has a dual role. On one hand, it serves as a regulator
of general national life, constituting the political element of law. On the
other hand, it becomes a distinct discipline for study, forming the juristic
element. Both elements play significant roles in the continued development of
law within a society. Savigny often pointed to the history of Roman law as a
prime example of these processes.
Contrary to this organic development, the emergence of the Taliban government
appears to be driven more by force than by the general consciousness of the
people. The Taliban's ascent to power involved military strategies, coercion,
and conflict, rather than a natural evolution based on internal necessity and
In this context, the Taliban government's development contrasts sharply with
Savigny's theory, as it lacks the organic and internally driven progression that
he envisioned. The imposition of laws through force raises questions about the
legitimacy, representative ness, and compatibility of the legal system under the
Taliban with the principles outlined by Savigny.
The divergence between Savigny's theoretical framework and the development of
the Taliban government highlights the complexities and challenges in applying
legal theories to diverse political situations.
Law is a Continuous and Unbreakable Process
Savigny's perspective on the growth of law emphasizes its continuity and
unbroken development, rooted in common cultural traditions and beliefs. He views
law as an organic product of historical processes, suggesting that the
historical context should be the subject of study for jurists seeking to
understand the evolution of legal systems. Savigny expresses caution about
codifying law too early in the developmental stage, as he believes it may impede
the natural and continuous growth of the legal system.
The reference to the years 1996 to 2001 suggests a specific period during which
a particular group or regime in a region may have established or modified laws.
If, during this time frame, there were significant changes or disruptions in the
legal system, it could be seen as a departure from Savigny's idea of continuous
and organic legal development.
The mention of a new regime in 2001 indicates a shift in governance, which may
have influenced the legal system. If this change involved a substantial
alteration or interruption in the legal framework, it could be seen as a moment
when the law did not continue to grow organically but experienced a break in its
In the context of Savigny's theory, the interruption or cessation of law's
growth might be attributed to external factors, such as political changes or
interventions. Savigny's caution against premature codification aligns with the
idea that a legal system should fully develop and stabilize before codification
takes place. If the change in regime in 2001 led to a codification of law or a
significant departure from existing legal traditions, it could be considered a
deviation from Savigny's preferred approach to legal development.
It's important to note that the specifics of the legal changes during the
mentioned period would provide a clearer understanding of how the principles of
Savigny's theory were applied or deviated from in that particular context.
Savigny's Administration for Roman Law
In his role as a legal scholar in Germany, Savigny, while emphasizing the
significance of Volksgeist, the spirit of the people, as the foundation of law,
displayed a pragmatic approach. Despite his staunch advocacy for national legal
traditions, Savigny justified the incorporation of Roman Law during a period
when German law had been influenced by Roman legal principles.
He located the essence of the people's spirit, Volksgesit, within the Romanized
German customary law. This pragmatic stance allowed Savigny to acknowledge and
incorporate legal elements that had already permeated the existing legal
landscape, showcasing his recognition of the historical and cultural interplay
in the evolution of legal systems.
However, your observation raises concerns about the practicality of the fourth
element of Savigny's theory in the context of Afghanistan. Savigny's elements
include the essence of law rooted in the people's cultural traditions, the
continuous growth of law based on historical processes, caution against
premature codification, and the acknowledgment of the people's spirit in legal
traditions influenced by foreign principles.
If the integration of foreign legal traditions diffused into the local legal
system, as seen in the Romanized German customary law, is considered impractical
in Afghanistan, it suggests potential challenges or complexities in applying
Savigny's theory to this specific cultural and historical setting.
The unique circumstances in Afghanistan, characterized by diverse cultural and
legal influences, may require nuanced considerations that differ from Savigny's
experiences in Germany.
In conclusion, criticisms of Savigny's legal theory highlight its
inconsistencies and limitations in diverse contexts, especially when faced with
authoritarian regimes like the Taliban in Afghanistan. The theory's emphasis on
organic law growth clashes with the deliberate imposition of laws, questioning
The coercive nature of the Taliban's rule challenges Savigny's idea of law
developing from the collective spirit of the people, raising doubts about
legitimacy. The theory's applicability is further questioned by the force-driven
ascent of the Taliban, challenging Savigny's view of spontaneous legal
Disruptions in Afghanistan challenge the notion of law as a continuous process,
questioning Savigny's caution against premature codification. The pragmatic
integration of Roman law in Germany doesn't necessarily apply to Afghanistan's
unique circumstances, highlighting the need for a more adaptable approach to
legal theories in complex socio-political settings.
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